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Guest Post: Marcus Berghahn on the Court of Appeals decision upholding the use of hearsay at preliminary hearings

State v. Martin P. O’Brien,  State v. Kathleen M. O’Brien, and State v. Charles E. Butts, 2013 WI App 97.

As briefly noted in a previous post, the Court of Appeals has upheld Wis. Stat. § 970.038, which makes hearsay admissible at preliminary hearings and allows bindover based solely on hearsay. On Point is pleased to present this guest post about the decision by Attorney Marcus Berghahn, a shareholder at Hurley, Burish & Stanton, in Madison, where he practices criminal defense. He wrote the amicus curiae brief in the case on behalf of the Office of the State Public Defender and the Wisconsin Association of Criminal Defense Lawyers.

1. The Court’s Decision.

In these consolidated appeals the Court of Appeals addressed legal challenges to § 970.038 and concludes that “[a]dmitting hearsay evidence at the preliminary examination presents no constitutional problems.” (¶2) Specifically, as to the challenges raised, the court held that the statute did not violate a defendant’s right to confrontation (¶11), due process (¶20), compulsory process (¶23) or assistance of counsel (¶25). Tacitly, the court approved of the procedure used in these consolidated cases, which all involved law enforcement officers testifying to hearsay contained in the criminal complaint, though the officer was not familiar with the contents of the investigative reports underlying the hearsay declarant’s statements or the entire investigation. All the same, the determination of probable cause must happen on a case-by-case basis.

It remains the duty of the trial court to consider the apparent reliability of the State’s evidence at the preliminary examination in determining whether the State has made a plausible showing of probable cause to support binding over the defendant for trial. (¶2).

While the admission of hearsay under § 970.038 may simplify the State’s presentation of evidence at the preliminary examination, nothing in the new statute bars the defendant from exercising the statutory rights attendant to a preliminary examination: namely, to cross-examine or subpoena witnesses (§ 970.03(5)). “The defense retains the same rights to cross-examine and call witnesses that applied at preliminary examination before enactment of the new law.” (¶22) That said, those rights must be read in concert with the purpose of the proceeding: “But the scope of those rights is limited by the scope and purpose of the preliminary examination.” (Id.) Thus, at the preliminary examination in O’Brien, the court of appeals noted approvingly, the magistrate properly foreclosed the defendant’s attempt to subpoena the complaining juvenile witness to testify at the preliminary examination. The court agreed with the magistrate that had the defendant proffered that the complaining juvenile witness would testify “that he was in Canada for the entire period of time which is subject of this investigation” the magistrate’s analysis of the charges “may have been different.” (Id.)

Returning to the purpose of the preliminary examination, the court noted that the question for the magistrate at the proceeding is whether the State has presented a believable account of the defendant’s commission of a felony. To that end, the court commented,

It matters not whether this rule marks a great change from prior practice in Wisconsin criminal cases, nor whether the change will prove to be an effective or wise one. Wisconsin Stat. § 970.038 is consistent with the federal and state constitutions and is now the law of Wisconsin. (¶26)

2. Admission of Hearsay at Preliminary Examinations.

Hearsay was admissible at preliminary examinations before the passage of § 970.038, to prove non-consent in theft cases, mainly. With passage of § 970.038 hearsay became admissible without limitation. Wis. Stat. § 970.038(1). Too, the statute permits the magistrate to find probable cause “in whole or in part” on hearsay. Wis. Stat. § 970.038(2). In practice, the real impact of the statute was felt in cases where the state called a police officer to testify about the contents of the criminal complaint. So long as a court is willing to determine the existence of probable cause entirely on hearsay, under § 970.038 it is no longer necessary for citizen witnesses or complainants to testify at the preliminary examination.

The consolidated cases present an example of what could be done to streamline the presentation of evidence. The presentation of evidence in both cases was similar. Butts was charged with child sexual assault and child enticement as a persistent repeater. At his preliminary examination, the State called one witness, a detective who recounted that a minor female identified Butts in a photo lineup as the man who sexually assaulted her. The detective further testified that she was aware of an interview another detective conducted with a different minor female who stated Butts sexually assaulted her (the testifying detective was not present for the second witness’s interview).

Similarly, in O’Brien, where the defendants were charged with abusing multiple children, the State called an investigator who conducted some, but not all of the initial interviews with the complaining witness and the follow-up investigation. At the preliminary hearing, the State introduced the criminal complaint as an exhibit and presented only one witness—a police officer who investigated the charges and helped prepare the criminal complaint. The investigator had no personal knowledge of any of the alleged offenses and simply testified about hearsay statements in the complaint.

On cross examination, the investigator admitted that she interviewed only one child. She never conducted any follow-up interviews with the other children. The investigator admitted that the complaint contained significant factual gaps and the incidents described were only summaries, not verbatim accounts. The defendants tried to get the investigator to fill in the gaps and describe additional facts to provide context regarding the time, place, and sequence of the events, but the court sustained repeated State’s objections that the questions were “discovery.” When the witness was permitted to answer, she was frequently unable to recall any facts not found in the criminal complaint.[1]

3. What The Court Missed.

If the question presented in these cases was the interplay between § 970.038, the scope of the hearing and the burden of proof at the preliminary examination, one can not complain about the outcome. Nothing in § 970.038 changed what was necessary to prove probable cause; the statute changed only the manner in which the proof could be introduced. In this regard, the court acknowledged “that criminal defense lawyers would much rather cross examine the declarant or accuser than a police officer who gives a hearsay account of what the declarant or accuser said,” (¶24) as if to suggest that defense counsel seeks to “get away with” more than is allowed.

But framing the issue in this manner misses a larger point: namely, the purpose of the preliminary examination. The hearing has always been an important check on the advancement of a felony case, a way to avoid a prosecution that is too hasty or improvident and to determine if there is a substantial factual basis for bringing the prosecution. State v. Williams, 198 Wis. 2d 516, 527, 544 N.W.2d 406, 411 (1996); State v. Dunn, 121 Wis. 2d 389, 398, 359 N.W.2d 151, 155 (1984) (preliminary hearing is a screening device to assure that “the accused is not being prosecuted too hastily, improvidently, or maliciously and that there exists a substantial basis for bringing the prosecution”). Indeed, our supreme court recently repeated that this core purpose of the hearing retains its vitality. State v. Kleser, 2010 WI 88, ¶55, 328 Wis. 2d 42, 786 N.W.2d 144. An accused may be bound over for trial only when the evidence presented at the preliminary hearing provides “probable cause to believe that a felony has been committed by the defendant.” Wis. Stat. § 970.03(7). When witnesses testify only to hearsay contained in a criminal complaint, the hearing’s important function is rendered moot.

The greater latitude afforded to the magistrate at the preliminary examination—now that she can rely in whole or in part on hearsay— has meant that, at least in some trial courts, the proceeding has lost much of its meaning. For when the only witness at the hearing testifies based wholly on the contents of the criminal complaint as the only evidence of probable cause and that witness has limited personal knowledge of the facts alleged in the complaint, the protections inherent in the proceeding are rendered meaningless. Despite the statute’s language, not all trial courts have followed this approach; some read the statute to still require a witness’s personal knowledge of the events testified to.

4. What’s A Defense Lawyer To Do?

Admittedly, when confronted with a witness who is questioned exclusively on the hearsay contained in the criminal complaint and has little or no substantive knowledge about the case, effective cross examination will be difficult, if not impossible; and the hearing will be almost meaningless. In the end, probable cause as the standard for bind-over should mean something. So defense counsel needs to reinforce the meaning of probable cause.

“Probable cause” means different things in different contexts and “probable cause” to bind an individual for trial is set at a higher level than “probable cause” to place a citizen in handcuffs, to arrest, or to search a person’s home or bank records, or to file a criminal charge against that individual. “‘[P]robable cause’ does not refer to a uniform degree of proof, but instead varies in degree at different stages of the proceedings.” County of Jefferson v. Renz, 231 Wis. 2d 293, 304, 603 N.W.2d 541 (1999). “The degree of probable cause required for a bind over is greater than that required to support a complaint [but less than] a finding of guilt beyond a reasonable doubt.” T.R.B. v. State, 109 Wis. 2d 179, 188, 325 N.W.2d 329 (1982); Taylor v. State, 55 Wis. 2d 168, 173, 197 N.W.2d 805 (1972) (noting that a preliminary hearing “may require more by the way of evidence than other preliminary determinations of probable cause”).

Simplifying judicial review of probable cause should not reduce the meaningful role of the preliminary examination. If the purpose of the hearing is to act as a check on the executive, then permitting trial courts to base a finding of probable cause on a narrow reading of § 970.038, is to render the preliminary hearing perfunctory and meaningless within the larger function given to this critical stage of the proceedings. State v. Schaefer, 2008 WI 25, ¶33, 308 Wis. 2d 279, 746 N.W.2d 457 (The independent screening function of the preliminary examination serves as a check on the prosecutorial power of the executive branch. An accused has the option to assure that the hearing is scheduled expeditiously so that he may be discharged quickly if the government cannot justify its right to go forward).

While a criminal complaint suffices for the filing of criminal charges, it is not sufficient evidence for bind-over; this much § 970.038 did not change. Taylor, 55 Wis. 2d at 173 (noting that a preliminary hearing “may require more by the way of evidence than other preliminary determinations of probable cause”). The higher level of probable cause needed for bind-over contains an aspect of reliability. The standard can be met when a witness testifies under oath and the court is able to evaluate them, watch them, and hear their recounting of the events described in the criminal complaint.

Next, when the state relies on the criminal complaint at the preliminary hearing, examination of the reliability of the hearsay declarant must follow. The rules of evidence contemplate such an examination. Wis. Stat. § 908.06. The court in O’Brien noted that this issue retains vitality at the preliminary examination:

  • “[T]he hearsay nature of evidence may, in an appropriate case, undermine the plausibility of the State’s case.” (¶2)
  • “Under § 970.038, hearsay is to be admitted at a preliminary examination, unless it is objectionable upon some other ground.” (¶4)
  • “The plausibility standard does not require a trial court to ignore blatant credibility problems, but requires it to consider all reasonable inferences that can be drawn from the facts in evidence.”[2](¶24)

When questioning of the reliability of the declarant does not occur, the statements have no more force than the document containing them; and, if no more evidence is offered, the standard for bind-over cannot be met.

The rules of evidence apply at a preliminary hearing. Wis. Stat. §§ 901.01 and 911.01. When hearsay is admitted at a preliminary hearing (or any hearing), then “the credibility of the declarant may be attacked.” Wis. Stat. § 908.06. This is so because, fundamentally, hearsay rules are all about reliability. The exceptions are founded on policies that suggest some statements are more reliable than others. If the statement is less reliable, then it should not be admitted into evidence, absent indicia of reliability. So looking to the reliability of the hearsay declarant is entirely appropriate when the state, at a preliminary hearing, offers such statements through a third party rather than the declarant.

Previously, when hearsay was generally not admissible at a preliminary hearing, in the absence of an exclusion or exception, there was little basis for the resort to § 908.06. Adoption of § 970.038 changed that. After hearsay became admissible, regardless of whether it has any indicia of reliability, the law now permits questioning related to the credibility of the hearsay declarant. Wis. Stat. § 908.06. Both statutes must be read in tandem. Reliability is a touchstone of all legal proceedings, especially criminal cases where an individual’s liberty is at stake.


[1]Wis. Stat. § 906.02 would seem to require the State to call more than this one investigator. Under § 906.02, witnesses must have personal knowledge regarding the subject of their testimony; so what a complaining witness told the investigator is permissible, but reliance on another investigator’s report to recount another witnesses’ statement falls outside of the statute. But § 970.038 does not limit the number of levels of hearsay that the magistrate may admit at the preliminary examination.

[2]But, again with the purpose of the proceeding in mind, the line between credibility and plausibility “is crossed when one delves into general trustworthiness of the witness.” State v. Dunn, 121 Wis. 2d 389, 397, 359 N.W.2d 151, 155 (1984), citing Wilson v. State, 59 Wis. 2d 269, 208 N.W.2d 134 (1973). “A preliminary hearing is not a proper forum to choose between conflicting facts or inferences,” Dunn, 121 Wis. 2d at 398, a point the Court repeated almost twenty-five years later in State v. Schaefer, 2008 WI 25, 308 Wis. 2d 279, 298, 746 N.W.2d 457, 467. When a party at a preliminary examination seeks to impeach the witness in order “to expose inconsistencies in the accounts given,” the line of questioning is properly foreclosed under Dunn, because such questions are “impermissible at the preliminary examination.” State v. Knudson, 51 Wis. 2d 270, 280-81, 187 N.W.2d 321 (1971); and State ex rel. Funmaker v. Klamm, 106 Wis. 2d 624, 630, 317 N.W.2d 458 (1982) (observing that “possible weaknesses in [the witness’s] identification are matters affecting . . . weight and credibility” and not subjects for the preliminary examination).


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